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How Rochelle Sterling Got Donald Sterling's Medical Records To Claim Control Of The Clippers

One week before billionaire Steve Ballmer signed the $2 billion deal to buy the Los Angeles Clippers, Dr. James Spar, a professor of psychiatry at the University of California, Los Angeles’ medical school, showed up at Donald Sterling’s Beverly Hills home. Spar had gone to the house on the request of Pierce O’Donnell, Rochelle Sterling’s lawyer. Sterling did not greet Spar until his wife, Rochelle, arrived and got Sterling to go see the doctor. Rochelle Sterling remained in the room during the examination and on two occasions encouraged Sterling to complete the evaluation when he wanted to leave.

These details are described by Spar in a letter addressed to O’Donnell that has been filed in California State court in Los Angeles by Rochelle Sterling as part of her effort to get a judge to find Sterling medically incapable of serving as a trustee of the trust that controls the Clippers so she can sell the team. At the center of the legal action filed by Rochelle Sterling are medical records, “written certifications of his incapacity by two licensed physicians,” that she claims resulted in Sterling ceasing to serve as co-trustee of the trust on May 29, the day Rochelle Sterling agreed to sell the Clippers to Ballmer. The provisions of the trust, in which Sterling and Rochelle Sterling were co-trustees, say that Sterling can be removed from control of the trust if two licensed physicians determine he is medically incapacitated and incapable of performing his duties as co-trustee.

There is a lot at stake. As Rochelle Sterling points out in the legal filing, the National Basketball Association will try to seize and sell the Clippers if the deal with Ballmer doesn’t close before September 15. To implement a plan to sell the Clippers to Ballmer over the objections of Sterling, Rochelle Sterling not only needs to wrest control of the Sterling Family Trust from him, she needs to do it quickly. In fact, Rochelle Sterling was originally racing against a deadline of June 3, when NBA owners were set to potentially strip Sterling of the team. Now, Rochelle Sterling is asking a probate judge to confirm her authority to sell the team as she has agreed.

The legal fillings made by Rochelle Sterling show that the effort to declare Sterling medically incapacitated started before May 29, the day when Sterling refused to sell the team and, according to a New York Times report, O’Donnell turned to a conference room full of advisers and said, “time to go to Plan B,” referring to the plan of getting Sterling deemed incapacitated. The filings suggest that Rochelle Sterling was at some point in on the plan and also make clear that O’Donnell was at the center of the effort. A person close to the situation says that the evidence in the probate case will show that Rochelle Sterling was not knowledgeable about the trust provisions involving medical incapacity of a trustee until around May 27. O’Donnell declined to comment on when he began to lay the groundwork for Rochelle Sterling to claim full control of the team using medical records. Sterling may not be a good guy, but legal experts say that the tactics used to try to strip him of control of the trust were aggressive.

A talented lawyer that Forbes once suggested was the new Perry Mason of Hollywood, O’Donnell built a successful legal practice over four decades, representing the likes of Art Buchwald and Faye Dunaway in prominent cases. He led a team that recovered $3.5 billion for California consumers in a class action antitrust case against Sempra Energy and El Paso Natural Gas, according to information put out by his law firm. But on two occasions O’Donnell has operated on the wrong side of the law and has been for a period of time suspended from practicing law. He was indicted by federal prosecutors for illegally facilitating conduit contributions to John Edwards’ 2004 presidential campaign, pleaded guilty to two misdemeanor counts in 2011 and sentenced to 60 days in prison. In a separate incident, he was sentenced to probation and ordered to pay more than $155,000 in fines after pleading no contest in 2006 to misdemeanor charges for using a false name in making political contributions to James Hahn’s Los Angeles mayoral campaign in 2001. After finishing to serve his jail time, he resumed his legal practice, joining the firm of Greenberg Glusker as of counsel in April 2014.

According to the account in The New York Times, Rochelle Sterling convinced her husband to get medical testing after she saw Sterling’s interview with CNN’s Anderson Cooper and became concerned for her husband’s well being. Sterling was first examined on May 19 in his Beverly Hills home by Dr. Meril Platzer, who had previously gotten Sterling to undergo brain scans at Cedars Sinai Medical Center. Rochelle Sterling, Platzer and Sterling later that day went out for drinks and dinner at the Beverly Hills Hotel, according to a witness. Platzer would later write a report of “certification of trustee’s incapacity” that said Sterling “is unable to reasonably carry out the duties as Trustee of The Sterling Family Trust.”

Circumstantial evidence suggests Spar’s evaluation was set up, at least in part, by O’Donnell to obtain the key second medical evaluation that would allow Rochelle Sterling to claim on May 29 that Sterling was medically incapacitated. Spar conducted the evaluation on May 22 at O’Donnell’s request and sent O’Donnell the letter containing the results on May 27, mentioning the trust. O’Donnell conceded in a statement that he was aware of trust provisions that described the process of deeming a trustee medically incapacitated when O’Donnell contacted Spar about examining Sterling.

Rochelle Sterling sat next to Sterling throughout the examination. “I asked him if he knew why I was there, and he said ‘I think so,’” Spar writes in the letter to O’Donnell that has been filed in California State court. Spar told Sterling that the scan of his brain was not adequate to establish the diagnosis of Alzheimer’s disease and an in-person evaluation would be required. Rochelle Sterling said that the doctor “was there for ‘a second opinion,’ and Sterling agreed to cooperate with the evaluation,” the letter says.

After conducting his evaluation, Spar wrote a report concluding that “Sterling is suffering from mild global cognitive impairment,” adding that “the overall picture is consistent with early Alzheimer’s disease, but could reflect other forms of brain disease.” Spar also addresses the trust in his letter, saying that Sterling “is no longer competent to act as trustee of his trust.”

The same day as the Spar evaluation, Sterling sent a letter to the NBA agreeing to the sale of his interest in the Clippers and authorizing Rochelle Sterling to negotiate a deal. There was no overt move at the time by Rochelle Sterling to take away Sterling’s control of the trust. When he later changed his mind about the sale, however, Rochelle Sterling claimed full control of the trust, citing the medical examinations. Bobby Samini, Sterling’s lawyer, said in an interview that the release of Sterling’s medical records to Rochelle Sterling’s lawyers could potentially violate the Health Insurance Portability and Accountability Act, the federal law known as HIPAA that requires medical records remain private. “Donald never consented to have his medical records provided to anybody and any disclosure of his medical records are a violation of HIPAA laws,” Samini said.

But O’Donnell appears to have moved very carefully in the days prior to May 27. He points to a provision in paragraph 7.5.c of the trust documents that says any individual who agrees to serve as trustee of the trust is “waiving any privacy rights governed by the Health Insurance Portability and Accountability Act of 1996.” In a statement, O’Donnell says: “At the time I contacted Dr. Spar at the direction of my client, Shelly Sterling, we were fully aware of section 7.5c of the trust agreement signed by Donald Sterling. Attorneys at Greenberg Glusker scrupulously followed the terms of this provision, which authorized the release of Mr. Sterling’s medical exams and reports for the purpose of securing the removal of an incapacitated trustee. Any claim to the contrary is entirely without merit.”

In Spar’s letter, he describes there being other lawyers present in another part of Sterling’s residence during the time of the medical examination. While it does not appear that they were informed about any connection between the medical examinations and the trust, Samini declined to comment about whether Sterling’s lawyers knew about the existence of the medical examinations.

Steven Lubet, a law professor and legal ethics expert at Northwestern University, said that O’Donnell’s effort to obtain medical documentation of Sterling’s medical incapacity was “aggressive, but does not appear to be unethical.” Said Lubet: “If Mrs. Sterling introduced a physician to Mr. Sterling at the suggestion of her lawyer, I don’t think there is an ethics issue even if they did not disclose the purpose.” Stephen Gillers, a New York University law professor specializing in legal ethics, said that O’Donnell’s request of the doctor to examine Sterling without the consent of Sterling’s lawyer was “aggressive and risky but perhaps legitimate,” pointing to California’s no-contact rule of professional conduct for lawyers. That rule makes it a no-no for a lawyer to communicate directly or indirectly with a party to a matter who the lawyer knows has legal representation for that matter. Gillers says an ethics issue could stem from the fact that the doctor communicated on O’Donnell’s request with Sterling with the purpose of gathering information, but that there would only be an ethics issue if it was determined Sterling really had representation over the matter of his mental competency during the Spar examination. “The existence of the rule is to protect clients against overreaching by adverse lawyers,” says Gillers.

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